This article first discusses the current phenomenon of women judges and male lawyers in China. Many women have joined the ranks of the Chinese judiciary because this is considered a stable job conducive to caring for one's family, as opposed to being a lawyer, which requires business travel and heavy client entertaining. I then trace this phenomenon to ancient views of Heaven, earth, gender and law in China. In this yin/yang framework, men had primary responsibility for providing sustenance for both this life and the life to come and women were relegated to the "inner chambers". Also, law was secondary to ritual, which mediated between Heaven and earth, and lawyers were deemed unnecessary.

After telling the stories of legal actors in China from imperial times to the present (including the fabled qingguan (model judges) and the first woman lawyer), I conclude that a revolutionary space for women has opened up. The inadvertent conflation of Confucian gender stratification, cultivation and mainland economics and politics has led to the redefinition of the inner chambers to judicial chambers. This inadvertence can be strategic. As China's political and legal system develops, these judicial positions may yield a powerful sphere of influence. Also, China's new judges are and should be inspired by their legal ancestors who harmonized Heaven and earth, virtue and talent. Part of the robust future of the rule of law in China lies in its past.

On first blush the Jim Crow Era may seem an odd place to locate anything meaningful about democratic, equal citizenship and the promise of the fourteenth amendment. This article argues to the contrary. The period of Jim Crow, in its negation of democratic citizenship, in fact reveals import aspects about the nature of democratic citizenship. This occurred in two ways. First, whites who implemented white supremacy implicitly understood that freedom and citizenship manifest themselves in a multiplicity of spheres, which is why white supremacists sought to subordinate blacks not just politically but across all social spheres. Second, the resistance to comprehensive subordination revealed the multiplicity of the spirit of freedom and equality in actions and arguments African Americans. African Americans created spaces of democratic citizenship within the dominant culture of subordination. This article suggests that, in studying both the implementation of white supremacy and the resistance to it, we can learn more about how equal and democratic citizenship can be affirmed and implemented rather than negated, and also about the role of law as a tool for both subordination and resistance.

The Supreme Court in Rostker v. Goldberg (1981) upheld male-only military registration, and endorsed male-only conscription and combat positions. Few cases have challenged restrictions on women's military service since Rostker, and none have reached the Supreme Court. Federal statutes continue to exclude women from military registration and draft eligibility, and military regulations still ban women from some combat positions. Yet many aspects of women's legal status in the military have changed in striking respects over the past quarter century while academic attention has focused elsewhere. Congress has eliminated statutory combat exclusions, the military has opened many combat positions to women, and the public has become more enthusiastic about women's military service, including in combat.

This Article brings long overdue attention to the record of women's legal status in the military in order to make three broad theoretical and historical points. First, women's continued exclusion from registration, draft eligibility, and some combat positions undermines the common assumption that legalized sex inequality has faded into history. Second, the record of women's legal status in the military helps illuminate how extrajudicial events can shape the Supreme Court's constitutional interpretation and then render that interpretation much less plausible over time. Rostker reflected contemporaneous understandings of sex equality. The extrajudicial transformation in women's military role since Rostker has undercut the factual premises and cultural assumptions behind Rostker's interpretation of constitutional equal protection, making clear that Rostker is inconsistent with the rest of the Court's sex discrimination jurisprudence. Third, and most strikingly, the record of women's legal status in the military illustrates how extrajudicial actors can develop and enforce their own evolving understanding of sex equality norms, sometimes becoming a more important source of those norms than courts. The extrajudicial transformation in women's military role has shifted the foundational normative commitments that shape the evolving meaning of constitutional equal protection. This transformation makes limits on women's military service that seemed just and reasonable in the 1970s and 1980s, even to many proponents of sex equality in constitutional and statutory law, now appear increasingly wrong, inequitable, and invidious. Over time, that shift in perspective is likely to affect demands for further change and judgments that both courts and extrajudicial decisionmakers reach about how the Constitution's open-textured language of equal protection applies to specific questions about women's military role. The Article concludes by exploring some of the practical consequences of the extrajudicial shift in perspective on women's military service.

FREEDOM’S BATTLE: The Origins of Humanitarian Interventionby Gary J. Bass (Alfred A. Knopf) is reviewed for the New York Timesby Adam Hochshild. He finds it "two books that don’t quite fit together." For Hochshild, "the longer and better one is a lively narrative history of a string of European efforts to stop various massacres in the 19th-century Ottoman Empire." The rest of the book consists of "several short chapters before and after this story...in which Gary J. Bass argues for humanitarian military interventions as a tool of international justice today."

In his passages on humanitarian intervention in the 19th century, "Bass the diligent historian undermines Bass the policy advocate by making clear that the motives behind them were not entirely humanitarian." Hochshild suspects that

what is driving Bass...is the feeling so many of us had during the 1990s: outrage over the tragic failure of the United States and its European allies to stop the genocide in Rwanda, and their long, inexcusable delay about doing so in Bosnia. He would like to make sure this never happens again — and so would I. But his book appears at a historical moment totally overshadowed by a far larger and more dangerous intervention, which he refers to only in passing: the catastrophic invasion of Iraq.

Why do we sometimes let evil happen to others and sometimes rally to stop it? Whose lives matter to us? These are the key questions posed in this important and perceptive study of the largely forgotten nineteenth-century “atrocitarians”—some of the world’s first human rights activists. Wildly romantic, eccentrically educated, and full of bizarre enthusiasms, they were also morally serious people on the vanguard of a new political consciousness. And their legacy has much to teach us about the human rights crises of today.

Gary Bass shatters the myth that the history of humanitarian intervention began with Bill Clinton, or even Woodrow Wilson, and shows, instead, that there is a tangled international tradition, reaching back more than two hundred years, of confronting the suffering of innocent foreigners. Bass describes the political and cultural landscapes out of which these activists arose, as an emergent free press exposed Europeans and Americans to atrocities taking place beyond their shores and galvanized them to act. He brings alive a century of passionate advocacy in Britain, France, Russia, and the United States: the fight the British waged against the oppression of the Greeks in the 1820s, the huge uproar against a notorious massacre in Bulgaria in the 1870s, and the American campaign to stop the Armenian genocide in 1915. He tells the gripping stories of the activists themselves: Byron, Bentham, Madison, Gladstone, Dostoevsky, and Theodore Roosevelt among them.

Military missions in the name of human rights have always been dangerous undertakings. There has invariably been the risk of radical destabilization and the threatening blurring of imperial and humanitarian intentions. Yet Bass demonstrates that even in the imperialistic heyday of the nineteenth century, humanitarian ideals could play a significant role in shaping world politics. He argues that the failure of today’s leading democracies to shoulder such responsibilities has led to catastrophes such as those in Rwanda and Darfur—catastrophes that he maintains are neither inevitable nor traditional.

Timely and illuminating, Freedom’s Battle challenges our assumptions about the history of morally motivated foreign policy and sets out a path for reclaiming that inheritance with greater modesty and wisdom.

Stephanie Hunter McMahon analyzes the governance of the U.S. Virgin Islands from 1917 through 1936 to assess the relative value of economic and social factors in territorial governance. A review of key decision-makers' financial and political concerns reveals that the U.S. accepted responsibility for the islanders' economic welfare but not their civic well-being. Recognizing the depth of the islanders' financial distress, McMahon contends that the U.S. extended political rights to the territory's inhabitants, not out of democratic obligation, but in the hope of decreasing the burden the islands placed on the federal treasury. Thus, economic considerations largely dictated legislative decisions.

Sen. John McCain was born a U.S. citizen and is eligible to be president. The most serious challenge to his status, recently posed by Prof. Gabriel Chin, contends that the statute granting citizenship to Americans born abroad did not include the Panama Canal Zone, where McCain was born in 1936. When Congress amended the law in 1937, he concludes, it was too late for McCain to be "natural born."

Even assuming, however, that McCain's citizenship depended on this statute - and ignoring his claim to citizenship at common law - Chin's argument may be based on a misreading. When the statutory language was originally adopted in 1795, it was apparently read to address all children born outside of the United States proper, which would include those born in the Canal Zone. Patterns of historical usage, early interpretations of the citizenship statutes, contemporaneous expressions of the statutes' purpose, and the actual application of the statutes to cases analogous to McCain's all confirm this understanding. More recently, the acquisition of America's outlying possessions lent plausibility to new interpretations of the law. But because the key language was never altered between 1795 and 1936, its original meaning was preserved intact, making John McCain a U.S. citizen at birth.

We examine three reforms to property rights introduced by the United States in the Philippines in the early 20th century: the redistribution of large estates to their tenants, the creation of a system of secure land titles, and a homestead program to encourage cultivation of public lands. During the first phase of American occupation (1898-1918), we find that the progress of implementing these reforms was very slow. As a consequence, tenure insecurity increased over this period, and the distribution of farm sizes remained extremely unequal. We identify two primary causes for the slow progress of reform: first, the high cost of implementing these programs was a major factor in reducing take-up. On the other hand, the government was reluctant to evict delinquent or informal cultivators, especially on public lands. This reduced the costs of tenure insecurity. Political constraints prevented the government from subsidizing land reforms to a greater degree.

Thursday, August 28, 2008

The Legal History Colloquium at the New York University Law School, affectionately known as "the Golieb," after the Samuel I. Golieb Fellowship program it supports, has posted its fall line-up, here. (Photo credit.)

Monday, January 26, 2009PROFESSOR KEN KERSCH, BOSTON COLLEGEDIRECTOR OF THE CLOUGH CENTER FOR THE STUDY OF CONSTITUTIONAL DEMOCRACY

“Reacting to Civil Rights: The Conservative Constitutionalist Reaction to Brown and its Progeny”

Monday, February 23, 2009PROFESSOR JAMES ROGERS, BOSTON COLLEGE LAW SCHOOL

“The Curious History and Puzzling Persistence of Negotiable Instruments Law”

Monday, March 23, 2009PROFESSOR MARY DUDZIAK, UNIVERSITY OF SOUTHERN CALIFORNIAJUDGE EDWARD J. AND RUEY L. GUIRADO PROFESSOR OF LAW, HISTORY AND POLITICAL SCIENCE

“Law, War, and the History of Time”

Please contact Mr. Jonathan Hixon if you plan to attend the roundtables. Mr. Hixon will send you copies of the papers and help arrange for a parking permit for non-Boston College attendees (617-552-4125; hixon@bc.edu). Please contact Prof. Mary Bilder for further questions (617-552-0648; bilder@bc.edu).

This article discusses the law of treaty implementation in the early United States, with particular reference to whether and when treaties are self-executing and the legitimacy of the last in time rule for conflicts between treaties and federal statutes.

Other writers have used historical materials to support a variety of claims about these topics. Relying on the most comprehensive analysis of the historical materials to date, this article takes issue with nearly all of these writers. Most importantly, I do not contend that historical materials provide conclusive answers to the problems of treaty implementation. Rather, my historical narrative demonstrates a far greater degree of ambiguity during the founding period on critical issues than other writers have admitted.

The lack of clear original intentions was particularly true at the separation of powers level, which meant that the role of the House in treaty-making and implementation remained unclear. Solutions to this problem emerged only through a series of debates in Congress. Subsequent Supreme Court decisions effectively ratified the most broad-based of those solutions. Indeed, the congressional debates shed important light on the interpretation of those decisions - an issue on which, once again, I depart from most commentators.

Seen in this light, the law of treaty implementation emerges as an area in which original understandings provide little help. Nor can the solutions reached in the early nineteenth century claim the status of immutable rules. Rather, the congressional debates provide an example for our own time. The ideas and issues that came to Congress provide a framework and context for a debate that is necessarily ongoing and open-ended. To that end, I suggest that the general terms of Congress's solution should continue to guide doctrine - not because of their pedigree, but because they accommodate the relevant interests in an appropriate manner.

Further, putting these debates into their historical contexts also prepares the way for deepening scholarly discussion of the political theory of the treaty power. The conclusion argues that the early debates were most critically about the nature and scope of the federal government's sovereign authority, which in turn provides surprising and perhaps even uncomfortable insights into the claims made by contemporary inheritors of these debates.

﻿The D.C. Area Legal History Roundtable is an informal gathering of scholars who live or work in and around Washington, D.C. It first met in 2006 at George Washington University Law School and later at the law schools of American University and the Catholic University of America. It will reconvene on Friday, September 19, 2008, at the Georgetown University Law Center. The two-panel program appears below; abstracts, papers, and information on registration and other matters are here.

Wednesday, August 27, 2008

In spite of various sorts of whiningaccompanying this year’s Democratic National Convention, it is an historic moment in more than one way. It was not so long ago that an African American woman, Fannie Lou Hamer, captured the nation’s attention not with a convention floor speech but with testimony before the 1964 Credentials Committee of the DNC.

Hamer was a member of the Mississippi Freedom Democratic Partydelegation, which challenged the seating of Mississippi’s all-white Democratic delegation. Hamer attempted to register to vote for the first time in 1962 at the age of forty-four, and as a result lost her position as a sharecropper on a plantation near Ruleville, Mississippi. She then became a field organizer for the Student Nonviolent Coordinating Committee, encouraging voter registration, and in the course of this work was detained and beaten by police in Winona, Mississippi, resulting in permanent kidney damage. Hamer told this story to the Credentials Committee to make the point that African Americans were brutally treated and disenfranchised, so the political process that resulted in selection of the state’s delegation was illegitimate. How could the national party seat them and ignore the representatives of disenfranchised African Americans? Her speech was so riveting that President Lyndon Baines Johnson called an impromptu press conference in an effort to draw media attention away from the MFDP. Parts of Hamer’s speech were nevertheless broadcast on the networks that evening.

On August 22, 1964 in Atlantic City, Fannie Lou Hamer gave this testimony:

Mr. Chairman, and to the Credentials Committee, my name is Mrs. Fannie Lou Hamer, and I live at 626 East Lafayette Street, Ruleville, Mississippi, Sunflower County, the home of Senator James O. Eastland, and Senator Stennis.

It was the 31st of August in 1962 that eighteen of us traveled twenty-six miles to the county courthouse in Indianola to try to register to become first-class citizens.

We was met in Indianola by policemen, Highway Patrolmen, and they only allowed two of us in to take the literacy test at the time. After we had taken this test and started back to Ruleville, we was held up by the City Police and the State Highway Patrolmen and carried back to Indianola where the bus driver was charged that day with driving a bus the wrong color.

After we paid the fine among us, we continued on to Ruleville, and Reverend Jeff Sunny carried me four miles in the rural area where I had worked as a timekeeper and sharecropper for eighteen years. I was met there by my children, who told me that the plantation owner was angry because I had gone down to try to register.

After they told me, my husband came, and said the plantation owner was raising Cain because I had tried to register. Before he quit talking the plantation owner came and said, "Fannie Lou, do you know - did Pap tell you what I said?"

And I said, "Yes, sir."

He said, "Well I mean that." He said, "If you don't go down and withdraw your registration, you will have to leave." Said, "Then if you go down and withdraw," said, "you still might have to go because we are not ready for that in Mississippi."

And I addressed him and told him and said, "I didn't try to register for you. I tried to register for myself."

I had to leave that same night.

On the 10th of September 1962, sixteen bullets was fired into the home of Mr. and Mrs. Robert Tucker for me. That same night two girls were shot in Ruleville, Mississippi. Also Mr. Joe McDonald's house was shot in.

And June the 9th, 1963, I had attended a voter registration workshop; was returning back to Mississippi. Ten of us was traveling by the Continental Trailway bus. When we got to Winona, Mississippi, which is Montgomery County, four of the people got off to use the washroom, and two of the people - to use the restaurant - two of the people wanted to use the washroom.

The four people that had gone in to use the restaurant was ordered out. During this time I was on the bus. But when I looked through the window and saw they had rushed out I got off of the bus to see what had happened. And one of the ladies said, "It was a State Highway Patrolman and a Chief of Police ordered us out."...

I was carried to the county jail and put in the booking room. They left some of the people in the booking room and began to place us in cells. I was placed in a cell with a young woman called Miss Ivesta Simpson. After I was placed in the cell I began to hear sounds of licks and screams, I could hear the sounds of licks and horrible screams. And I could hear somebody say, "Can you say, 'yes, sir,' nigger? Can you say 'yes, sir'?"

And they would say other horrible names.

She would say, "Yes, I can say 'yes, sir.'"

"So, well, say it."

She said, "I don't know you well enough."

They beat her, I don't know how long. And after a while she began to pray, and asked God to have mercy on those people.

And it wasn't too long before three white men came to my cell. One of these men was a State Highway Patrolman and he asked me where I was from. I told him Ruleville and he said, "We are going to check this."

They left my cell and it wasn't too long before they came back. He said, "You are from Ruleville all right," and he used a curse word. And he said, "We are going to make you wish you was dead."

I was carried out of that cell into another cell where they had two Negro prisoners. The State Highway Patrolmen ordered the first Negro to take the blackjack.

The first Negro prisoner ordered me, by orders from the State Highway Patrolman, for me to lay down on a bunk bed on my face.

I laid on my face and the first Negro began to beat. I was beat by the first Negro until he was exhausted. I was holding my hands behind me at that time on my left side, because I suffered from polio when I was six years old.

After the first Negro had beat until he was exhausted, the State Highway Patrolman ordered the second Negro to take the blackjack.

The second Negro began to beat and I began to work my feet, and the State Highway Patrolman ordered the first Negro who had beat me to sit on my feet - to keep me from working my feet. I began to scream and one white man got up and began to beat me in my head and tell me to hush.

One white man - my dress had worked up high - he walked over and pulled my dress - I pulled my dress down and he pulled my dress back up.

I was in jail when Medgar Evers was murdered.

All of this is on account of we want to register, to become first-class citizens. And if the Freedom Democratic Party is not seated now, I question America. Is this America, the land of the free and the home of the brave, where we have to sleep with our telephones off the hooks because our lives be threatened daily, because we want to live as decent human beings, in America?

Thank you.

A link to an audio of Hamer’s testimony is here. An on-line documentary is here.

Hamer’s words continue to echo across generations, and are a reminder that a speech can have an impact. As much as the Obama campaign might wish to put race aside to appeal to an electorate that is more comfortable ignoring it, his speech tomorrow night and his nomination will be an enduring episode in American racial politics. Not a sign that a post-racial politics have been achieved, but a milestone nevertheless, in a history that transforms American politics even though it does not progress inevitably toward justice.

Neglected U.S. Supreme Court Justices are getting their day in the sun thanks to the Vanderbilt Law Review. A symposium on neglected Justiceswas held at Vanderbilt last spring, and the papers will be published by the law review. In the meantime, you can listen to audio of the conference on-line. Some of the subjects of this symposium strike me as having been more "neglected" than others, but the papers should be of interest nonetheless. Justices and authors involved in the project are:

The conference opened with a keynote by G. Edward White, University of Virginia. Commentary was provided by Mark Brandon, Vanderbilt University Law School; Daniel Sharfstein, Vanderbilt University Law School; Alfred L. Brophy, now of the University of North Carolina School of Law; Linda Przbyszewski, University of Notre Dame; and Lisa Bressman, Vanderbilt University Law School; and the conference ended with a roundtable that included Vanderbilt's Suzanna Sherry.

Pierce Butler: A Supreme Technicianis a new article by David R. Stras, University of Minnesota. It is forthcoming in a symposium issue of the Vanderbilt Law Review on Neglected Supreme Court Justices. Here's the abstract:

Despite serving more than sixteen years on the Supreme Court of the United States and authoring more than 300 opinions, Pierce Butler is one of the most overlooked Justices in American history. Relying on primary source documents housed at the Library of Congress, the University of Washington, the Carleton College archives, and the University of Minnesota archives, this Article is one of the first extensive treatments of Justice Butler in legal scholarship.

As part of a broader symposium on neglected Supreme Court Justices hosted by the Vanderbilt Law Review, this Article highlights four reasons why Butler has been ignored by scholars. First, Butler wrote in highly-technical areas of the law, such as public utilities regulation and tax law, which are of relatively low public salience and are consistently ignored by constitutional scholars who closely study the Supreme Court. Second, Butler's approach to opinion-writing stressed simplicity and minimalism, and it was rare indeed when he used rhetorical flourishes to argue a point. Third, Butler served with a highly-distinguished group of jurists and American historical figures, such as William Howard Taft, Benjamin Cardozo, Oliver Wendell Holmes, and Louis Brandeis, some of whom are consistently rated as the most successful Supreme Court Justices of all time. Finally, in those areas in which he wrote extensively, such as economic liberties, public utilities regulation, and taxation, he found himself on the wrong side of history. As a strict adherent to Lochner, for example, his opinions favoring property rights and economic liberties were essentially overruled by the end of his tenure on the Court.

This Article further challenges some of the fundamental assumptions about Justice Butler by offering a constitutional reassessment that challenges some of the traditional views about Butler's jurisprudence. In contrast to prior characterizations, Butler was hardly a monolithic conservative, as evidenced by his pro-defendant criminal rights and nuanced Fourteenth Amendment jurisprudence. Although this Article does not claim that Butler was one of the great Justices, it does point out that he is deeply understudied, likely underestimated, and regrettably misunderstood.

Tuesday, August 26, 2008

Freedom of Contract, a new essay by David E. Bernstein, George Mason University School of Law, is a short, accessible overview of the subject, with a very short abstract. It reads like an encyclopedia entry, although publication information isn't posted with this draft. Here's the abstract:

This essay provides a concise overview of the history of the constitutional status of freedom of contract in the United States, with particular attention to the rise and fall of the "liberty of contract" doctrine in the early 20th century.

Julie Novkov’s RACIAL UNION: LAW, INTIMACY, AND THE WHITE STATE IN ALABAMA, 1865-1954 is a compelling narrative about the regulation of interracial intimacy in the state of Alabama, primarily using appellate court rulings. The text provides a careful analysis of the case law to provide a snapshot of race relations in Alabama during the postbellum period. The book will be of much interest to scholars of the intersection of race and law in the United States and provides a window into the rapidly changing cultural constructions of race during this period of time. Novkov’s analysis will also be illuminating for scholars of gender and sexuality, as the text traces the variety of ways that race, gender, and sexuality intersected to produce differing and sometimes surprising legal outcomes. Novkov’s emphasis on the regulation of interracial intimacy highlights the legitimating influence of family law that defines the parameters of acceptable intimate relationships. Novkov uses this insight to demonstrate the ways that white supremacy was crucial in state development and to highlight the contemporary importance of this history including the residue of institutionalized racism and comparisons between bans on interracial marriage and anti-same sex marriage laws.

RACIAL UNION comes on the heels of the publication of several important texts examining the history of racialized legal structures in the United States. The text differs from others, however, in limiting the scope of the analysis to the regulation of interracial intimacy (laws not only against marriage but also regulating adultery, fornication, rape and property) and to an assessment of state rather than national developments. The limited scope enables a nuanced analysis of the development of legal practices in Alabama relative to local politics, as well as unpacking the complexities of race, class, gender, and sexuality within a particular context. Even further, the historical entrenchment of unequal race relations in Alabama calls for an understanding of the ways that white supremacy has influenced legal development. Novkov argues: “Supremacy was a political doctrine, grounded politically on racist beliefs but also reflecting a particular view of political power and the state’s obligations. Rather than being a simple reflection of racist attitudes, supremacy was emerging in these years as a system for the organization and articulation of governance” (p.72).

The analysis at the state level illuminates the ways that whiteness of citizenship was entrenched within law, culture, and politics in Alabama, using the “normal” family as the baseline for full membership in the political community. Further, while this period of time was tumultuous in terms of the meaning and institutionalization of race, changes in power relations were often motivated by tensions within the white supremacist community, rather than between white supremacists and those who opposed the structure of white power. Indeed, changes in the law were often motivated by the power struggles within the white community and, later, in power struggles playing on and against national politics. Novkov generates a narrative about race in America through reading state-level cases challenging the regulation of interracial intimacy that demonstrates just how deeply entrenched white supremacy was and, perhaps, continues to be.

Like many other law-school U.S. legal historians, I get to teach Pierson v. Post (N.Y. 1805) in a first-year property class every school year. Angela Fernandez, University of Toronto Law Faculty, has just posted an abstract for her article on the dispute, entitled The Lost Record of Pierson v. Post, the Famous Fox Case. Here is the abstract; the article may be read for a little while longer yet as a preprint from the Law and History Review's website.

Pierson v. Post, the famous fox case, has been reproduced in countless law school casebooks and written about endlessly in law review articles. A surreal air has hung around the case, in large part because scholars interested in it could access little more than what appeared in the reported appellate case at the New York Supreme Court in 1805, the rarefied "high law" in the case. Any documents setting out what happened at the lower court level were presumed lost. The judgment roll has now been found and is being made available to scholars for the first time. This article is a report on the discovery of that lost record and an introduction to the record highlighting the new information it gives us about the case. This is the "low law" we knew nothing about, specifically, the account of Post's jury trial before a Justice of the Peace, the amount of money he was awarded, and the grounds of Pierson's appeal. The new record does not answer all the questions we might have about this famous case. However, it provides much in the way of important new information that was previously unavailable to those with an interest in the case.

The only teaching tip I'd add is that Pierson v. Post goes terrifically well with Buster v. Newkirk (N.Y. 1822). Buster but not Pierson is in the first volume of John Chipman Gray's Select Cases; the legal historian Richard Helmholz and his coauthors pair the two in their rather more recently published casebook.

A longstanding debate, recently reinvigorated, is whether the U.S. Constitution imposes subject matter limitations on federal treatymaking akin to the limits it places, through Article I, Section 8, on federal legislation. That debate was supposedly settled in favor of substantively unlimited treatymaking power by the U.S. Supreme Court in Missouri v. Holland (1920), but leading "originalist" accounts contend that the Constitution's original meaning supports a contrary result.

This essay defends Holland's conclusion against its originalist detractors, not so much as a matter of history but as a matter of methodology. It outlines and applies an approach it calls "historical textualism" as a way to determine the Constitution's original meaning. In brief, historical textualism focuses on the specific words of the Constitution's text as they were situated and understood in the context in which they were written. Among other things, historical textualism discounts structural or "framers' intent" arguments not tied to the meaning of particular phrases and abstract textual arguments not tied to understandings of particular phrases reflected in the historical record. Although receptive to arguments based on drafting, ratification and post-ratification understandings, it is most interested in how relevant phrases were used and understood prior to the Constitutional Convention or in contexts not directly implicating the particular controversy at issue.

Applying this idea of historical textualism, this essay finds that the Constitution's original meaning finds fully supports Holland's conclusion that the treatymaking power is not substantively limited. Its contrast with other originalist analyses finding subject matter limits on federal treatymaking underscores the differences between historical textualism other approaches for determining historical meaning.

Borrowing a technique from Hollywood, historians at the University of Richmond have created animated maps that chart voting patterns in U.S. presidential elections since 1840.

The maps show county-by-county data for every major election year in which data are available, and that information shifts over time. One map, for example, highlights counties where the victor won by only a small margin. It reveals how "battleground states" have changed over the years. The maps are displayed as video montages, with each election year shown sequentially....

Leaders of the project, called Voting America, have coined a term for their images: 'cinematic maps.' They are examples of an emerging trend in social-science research in which scholars turn complex data sets into pictures to help reveal patterns across time.

Research on the relations among copyright law, authorship, and the literary marketplace has long been a major focus of scholarship in law and literature, and yet much of this research has been only haltingly interdisciplinary at best. Authorial views of literary proprietorship do not necessarily match up with the prevailing legal views, but the interest in the discrepancy lies not in simply cataloguing the differences and asking which rule would best promote the production of writing, but rather in considering the sources, manifestations, and consequences of these alternative positions. Writers often are not unaware of the legal provisions but are skeptical of their premises; conversely, where authorial views of ownership outstrip those mandated by law, writers may seek to model the rules that are lacking. Both the skepticism and the modeling are less likely to become visible through direct assertions than, for example, through plots whose animating tensions involve various forms of ownership and their limits. It does not follow that doctrinal scholarship has nothing to contribute to such an investigation, since such scholarship involves examining the assumptions behind rules that differentiate idea from expression, or that allow parodies to use only so much as is necessary to "conjure up" the derided original. It is precisely because literary texts also undertake that kind of testing, but without enumerating the results in propositional form, that an interdisciplinary engagement with these questions has so much to offer.

This review takes up these questions while discussing two books on the history of literary property by Joseph Loewenstein (Ben Jonson and Possessive Authorship [Cambridge UP, 2002] and The Author's Due: Printing and the Prehistory of Copyright [U of Chicago P, 2002]). I consider the work of historians such as Lyman Ray Patterson, John Feather, and Harry Ransom, and literary critics such as Martha Woodsmansee, Mark Rose, Paulina Kewes, Meredith McGill, and Paul Saint-Amour. I also discuss literary and bibliographical research on authorship and print culture, focusing particularly on Ben Jonson. While both Loewenstein's books should be of great interest to scholars working on the history of authorship, their engagement with legal doctrine and history is limited.

Sunday, August 24, 2008

I shouldn't have been surprised. After all, when the historian Daniel Rodgers discussed his great book on the transnational world of early twentieth century reform, Atlantic Crossings (1998) at Georgetown some years ago, he readily agreed, when the point was made by Mari Matsuda, that American reformers were in conversations not only with Europeans but with counterparts around the world. I also knew of "Pacific Crossings" from a Fulbright semester spent studying New Zealand's labor courts and from Peter Coleman's excellent Progressivism and the World of Reform (1987).

Still, I didn't know what to make of a letter from Felix Frankfurter to the eminent corporation lawyer William D. Guthrie, written in December 1922, recommending a series of lectures by the Bengali lawyer Nagendranath Ghose as "the most helpful book in English" on comparative administrative law. I had assumed that the international trade in ideas about the administrative state was overwhelmingly a matter of European imports by American reformers intent on building autonomous bureaucracies. Yet, upon examination, Ghose's Comparative Administrative Law (1919) turned out to be an imposingly learned work that ransacked ancient, medieval, and modern history in search of constraints on official discretion. What was there in this that spoke to Frankfurter so acutely?

I put the matter aside until earlier this year, when I found a letter from Ghose, written from Calcutta in 1925, in the papers of the Commonwealth Fund acknowledging the gift of a Fund-sponsored book, Gerard Henderson's Federal Trade Commission (1924). Ghose thanked Ernst Freund, the American-born, German-educated scholar who chaired the Fund's project on administrative law, for "remembering me, a humble worker in a field in which you and your colleagues in America have been pioneers." He explained why a book on an independent commission did not directly speak to his country's situation: "The transference of judicial powers from Courts of law to quasi-judicial administrative authorities has not been taking place in such rapid strides in India as in your country." In India, "the discretionary authority possessed by the executive" was "so much more absolute" than in the United States that it was unlikely to be exercised "in a judicial spirit." Ghose explained that Comparative Administrative Law was his call for "the early introduction in India of some form of administrative law to qualify and temper the exercise of this absolute discretionary authority." And by administrative law he meant, as the American Frank Goodnow did, the "self-control" of administrators through a body of internally generated rules that respected both efficiency and "citizens' rights."

I'm afraid that some desultory web browsing has not done much to widen the rather severe limits of my knowledge of Ghose's place in Indian history; I welcome comments from the better informed. I do know that Ghose was a scholar of Indian literature, a barrister (called to the bar by the Middle Temple, according to the Law Times of July 1, 1876) and an important figure in the early revolutionary movement. (In a letter to Felix Frankfurter in 1925, Ghose called India "a subject people beginning to chafe at its bonds.")

What interests me most about Ghose is the perspective he and his treatise throw on debates over administrative discretion in the early twentieth-century United States. View those debates in an exclusively national frame, and you might think that only trial lawyers, business leaders and other conservative figures attacked broad grants of discretionary power to administrators and that progressives uniformly defended them--excepting only the deportations of the Palmer Raids of 1919-20. A historian, alarmed by the excesses of the post-9/11 national security state and in search for a like-minded precursor, might well give up before discovering an American reformer who fully appreciated the potential danger to individual liberty of the administrative state. Where, a historian might ask, was the American counterpart to Harold Laski? Is the rehabilitation of Charles Evans Hughes, George Sutherland, or, heaven help us, James Montgomery Beck really the best we can do?

Ghose's deployment of administrative law against the British imperial officialdom suggests the possibility that reformers might have attempted to use administrative law (in Goodnow's and Ghose's sense) in analogous ways against the administrators of America's empire. (Felix Frankfurter's work as the chief legal officer in the Bureau of Insular Affairs during William Howard Taft's administration would be an obvious place to look.) More generally, Ghose's example suggests that an American reformer with something like the Bengali barrister's close-up view of the repressive capacities of foreign bureaucracies might have regarded the spread of autonomous bureaucracies in the United States with great alarm. In a work-in-progress I argue that Ernst Freund was one such reformer.

A sizeable body of literature suggests that informal methods of dispute resolution - and, in particular, conciliation - flourish only in societies marked by extensive social hierarchy. Given this literature, it is quite surprising to discover that in the mid-nineteenth century, the United States embarked on an extensive debate regarding whether to adopt conciliation courts, whose primary function was to reconcile the disputants by persuading them to embrace an equitable compromise.

First created by the French Revolutionaries in 1790, conciliation courts were widely established throughout continental Europe. Observing this development, leading American lawyers and politicians - anxious to respond to public complaints about the costly nature of litigation and the growing power of the legal profession, and seeking a solution to the deep social rifts threatened by new forces of urbanization and industrialization - pondered seriously whether the United States ought to follow suit. Debate over whether to embrace such institutions occurred at the very highest of levels - including at the New York Constitutional Convention of 1846, now more famously remembered for giving rise to the Field Code. And a series of states enacted constitutional provisions authorizing their legislatures to create conciliation courts.

Ultimately, however, despite the widespread interest in such institutions, these were never meaningfully established - except in the notable case of the Freedmen's Bureau courts of the Reconstruction south. This paper explores this largely forgotten episode in American legal history. It examines why a nation that was radically egalitarian by standards of the time would seriously consider embracing an institution that we tend more commonly to associate with inegalitarian, strongly hierarchical societies - and why, after coming so close to adopting conciliation courts, it ultimately failed to do so. In the process, by situating the debate over conciliation courts in a broader social and legal context, the paper also excavates the origins of the modern, quintessentially American commitment to the virtues of formal, adversarial legal process.

Tuesday, August 19, 2008

Here's a plug for several of my students, who, under the direction of my colleague David Vladeck and Georgetown's Institute for Public Representation, successfully opened the grand jury transcripts in the trial of Julius and Ethel Rosenberg, in a suit brought on behalf of the National Security Archive and others. The story is here.

Update: Professor Valdeck tells me that the federal judge hearing the dispute has yet to rule on the testimony of David Greenglass, who is alive and opposes its release. Vladeck expects the rest of the testimony will be released soon, save for that of several other living witnesses, whose testimony will be released after their deaths.

This Article presents newly discovered archival evidence demonstrating that government lawyers told a crucial lie to the United States Supreme Court in the case of Hirabayashi v. United States, 320 U.S. 81 (1943), which upheld the constitutionality of a racial curfew imposed on Japanese Americans in World War II. While the government's submissions in Hirabayashi maintained that the curfew was a constitutional response to the serious threat of a Japanese invasion of the West Coast, new archival findings make clear that military officials foresaw no Japanese invasion and were planning for no such thing at the time they ordered mass action against Japanese Americans. Even more disturbingly, the archival record demonstrates that at the time that Justice Department lawyers filed their brief in Hirabayashi emphasizing a threatened invasion, they knew this emphasis was false.

The Article seeks to understand what might have led otherwise ethical Justice Department lawyers to present such a big and consequential lie, suggesting that the then-prevalent racial schema of the "Oriental" as an invading horde may have overpowered the lawyers' evaluation of the facts. And perhaps more importantly, the Article demonstrates that the Hirabayashi decision - which has never been repudiated in the way that the more famous Korematsu decision has been, and which remains a potent precedent for race-conscious national security measures - deserves to be installed in the Supreme Court's Hall of Shame, alongside Korematsu, Dred Scott, and the Court's other biggest mistakes.

Monday, August 18, 2008

Based on usual traffic, by today the Legal History Blog should have its 200,000th visitor since its launch in late November 2006.* Visitors are from all over the world, and every continent except Antarctica. This means, I hope, that there is worldwide interest in new scholarship in legal history.

Thank you for visiting, and special thanks to fellow bloggers who link to the Legal History Blog!

*Since I am overseas, I've schedule this post in advance. To see the actual total today, scroll down to the very bottom of the blog.

Australia's first university law course began at the University of Melbourne in 1857, as the teaching of contemporary law, long neglected in England, spread among universities in common-law countries. Diploma privilege made the course distinctive, compared with many of its counterparts in the United States, Canada and the United Kingdom: from the beginning, its qualifications were recognised for the purpose of admission to legal practice, and the privilege was retained, with some variations, throughout the Melbourne Law School's history. Still more unusual, for a common-law jurisdiction, was the early date (1872) when university study became compulsory for all intending lawyers. The law school's role as gatekeeper to the profession made it the focus of an intense struggle over its curriculum in the 1930s and 1940s. The Melbourne Law School's history also shows the effects of trends in Australian higher education: the growth that followed World War 2; the rise and decline of federal government funding; the democratisation of university governance in the 1970s; and the emergence of the enterprise university, with its rising aspirations, corporate management and entrepreneurial spirit.

Table of ContentsPreface1 A School of Law: 1857-882 Cinderella: 1889-19273 Liberal and Cultured: 1928-454 Building the New Jerusalem: 1946-665 Village Democracy: 1967-886 Performance Against Plan: 1989-2007Conclusion

The centenary of Australian federation in 2001 produced a new generation of federation histories, with the potential to reshape lawyers' and historians' interpretations of the origins of Australia's constitution. This review essay discusses some of the early products of the centennial boom in federation history, and the understandings of the Constitution that they reflect.

This article examines what eighteenth-century novels and plays can tell us about the formation of marriage both before and after the Clandestine Marriages Act of 1753. It shows how the practices and, perhaps more crucially, the assumptions, of fictional characters were consistent with legal sources of the time, and that such primary sources fundamentally undermine many modern analyses of the making of marriage.

As the gap between the need for organ transplants and the supply of organs has increasingly widened, many scholars have urged the adoption of "presumed consent" to organ donation. Under a presumed consent regime, the state would assume that a person agreed to organ donation after death unless the person (or a family member) had lodged an objection to posthumous organ donation. Such an assumption would reverse existing law-currently, it is generally the case that organ donation requires actual consent from the donor or a family member of the donor.

For some forty years in a little-known experiment, the United States tried presumed consent on a limited basis. In many states, when dead persons came under the custody of coroners or medical examiners, those officials could authorize cornea donation-or even organ donation-in the absence of a known objection to the donation by the decedent or a family member. However, in 2006, the Revised Uniform Anatomical Gift Act recommended against presumed consent, and most states have followed the lead of the Revised Act.

This article reviews the history of presumed consent in the United States and concludes that presumed consent failed because it could not overcome the major reason why people do not become organ donors after death-the refusal of family members to give consent to donation. To the extent that presumed consent allowed family members to overcome the presumption and withhold consent, it did not address the reasons why family members say no. To the extent that professionals tried to preserve the presumption by bypassing families, they validated fears that doctors will be too quick to take organs from dead persons who would not have wanted their organs removed. The United States' history with presumed consent indicates that other proposed reforms will be needed to address the shortage of organs for transplantation.

The Court's decision in District of Columbia v. Heller might be taken in three different ways. First, it might be seen as a modern version of Marbury v. Madison, speaking neutrally for the text, structure, and original understanding of the Constitution. Second, it might be seen as analogous to Lochner v. New York, in which a majority of the Court invoked a dubious understanding of the Constitution in order to override the democratic will. Third, it might be taken as analogous to Griswold v. Connecticut, in which a majority of the Court, proceeding in minimalist fashion, used the Constitution to vindicate the contemporary judgments of a national majority. It is true that in emphasizing constitutional text and structure, the Court spoke in terms close to those in Marbury; indeed, Heller is the most self-consciously originalist opinion in the history of the Supreme Court. It is also true that many historians reject the Court's understanding of the Second Amendment, making it plausible to see the ruling as a modern incarnation of Lochner. But the timing and context of the decision suggest that Griswold is the most illuminating analogy. In both cases, the Court spoke on behalf of the contemporary sentiment of a national majority against a national outlier. The claimed analogy between Griswold and Heller fits well with the fact that Heller is a narrow ruling with strong minimalist elements. No less than the right of privacy, and notwithstanding the backward-looking nature of the Court's opinion, the right to have guns is likely to evolve over time through case-by-case judgments made under the influence of contemporary social commitments.

Filmmaking and the narration of history have been engaged in a complex relationship ever since the early days of filmmaking. Many films tell stories unfolding in previous times or about actual historical events, and their narration of history is often criticized as inaccurate, fictitious, or even intentionally misleading. When a highly publicized film suggests a controversial narrative of a certain chapter in history, a debate usually follows in the public arena, be it as part of the ongoing intellectual discourse or even in a political context. At times, however, the public debate is translated into legal terms. The article focuses on the difficulties confronting the attempt to apply legal regulation to historical films argued to be false—either by using private law causes of action, such as defamation and infringement of privacy, or by recourse to administrative censorship powers. The recent and highly controversial film Jenin, Jenin by the Israeli-Palestinian actor and filmmaker Muhammad Bakri, which professed to tell the story of residents of the Jenin refugee camp during an Israeli military operation, is used as a case study. In general, the courts insist on avoiding decisions on historical facts even when dealing with serious arguments about distortions in specific films. The article supports this judicial policy on the grounds that courts and governments should refrain from restraining freedom of speech based on arguments of truth and falsity. Yet, it also points to the inevitable disadvantages of this viewpoint given that the marketplace of ideas, particularly in the debate around realistic film making, is controlled by actors who have the power to shape collective memory.

And so, dear reader, you will have to do without me for several days. I've banked some posts to appear while I'm away, and Dan Ernstwill be joining before I return, but posting may be sparse for a time. And any blog glitches may go uncorrected.

This paper examines the two major English legal institutions that contribute to the American doctrine of judicial review as it developed after Independence. Examining the imperial use of written forms of government, Privy Council review of colonial legislative and judicial action, it demonstrates colonial familiarity with doctrines of superior law, and the legal profession's approach to concepts of repunancy, and non-conformity with English common law and statutes. Turning to the English Revolution, the Commonwealth period, and the Restoration, the paper examines English pamphlet literature and its contributions to principles of fundamental law and the rights of Englishmen. While a portion of these ideas were incorporated in the Glorious Revolution of 1688-89, the protections of the rights of Englishmen were denied to colonial subjects. This resulted in a two-tiered subjectship, which ultimately led to severe constitutional tension between Britain and her colonies, and finally the Declaration of Independence.

Johnson explains in the paper's introduction:

Inspired by the 1976 bicentennial celebrations of the American Revolution, historians have shown new interest in both the continuities and the contrasts between Britain and America that either contributed to, or emerged from, that conflict. Despite my indebtedness to these distinguished studies, I believe that many suffer from too narrow a periodization in their chronological coverage. That is particularly the case when dealing with political theory and constitutional development. We must look back well before 1776 or 1763, and take seriously the events of the English Civil War, the period of the Restoration, and finally, the so-called Glorious Revolution. This paper is merely an initial foray into the complexities that will be involved in such an analysis.

I agree with the basic thrust of Yoo's analysis, which is that Jackson played a crucial role in freeing the Presidency from the control of Congress. In the 1810s and 1820s, a consensus developed among political elites that the Executive Branch was bound by the judgments of Congress as expressed through legislative precedent. This body of customary law, which was supported by the likes of James Madison, Daniel Webster, and Henry Clay, held that the President did not have unfettered discretion to veto legislation. Instead, he was obligated to sign bills that were consistent with prior enactments. The same reasoning also denied the President's right to take a constitutional position that was contrary to the "settled" views of Congress and maintained that Cabinet officers were accountable to Congress rather than to the President. Jackson successfully challenged these limitations in his veto of the Second Bank of the United States, which rejected the idea that Congress's prior endorsements of that institution tied his hands, and in his campaign to remove the federal deposits from the Bank, in which he made it clear that the Cabinet was answerable to him alone by replacing two Treasury Secretaries who refused to follow his orders. Yoo draws a more accurate picture of these developments than Lou Fisher does in his post, in the sense that Fisher implies that all of these questions were definitely settled by the Framers.

Nevertheless, I am not persuaded by Yoo's reliance on Jackson's pre-presidential actions as a military commander for guidance for how executive power should be read in a foreign policy context. While it is true that some of these extraordinary actions (e.g., declaring martial law, convening military commissions), were retroactively endorsed by the political branches, the circumstances under which that occurred were fraught with ambiguity and constitute, at best, questionable authority. (For a fine discussion of these issues, I would recommend Matthew Warshauer's book on Andrew Jackson and Politics of Martial Law). In any event, using discretionary battlefield experiences to define the functions of a civilian office that is embedded within a legal system is simply inappropriate. (For example, nobody thinks that Oliver Cromwell's military acts tell us anything meaningful about English parliamentary practice.) The only way that the analogy works is if military necessity trumps all other competing constitutional values, which is a treacherous assumption that Yoo and the Bush Administration have embraced a little too eagerly for my taste.

In the spirit of Professor Yoo's project, however, let me close by pointing out three ways of thinking about how Jackson's approach to executive authority relates to the path pursued by the current President. First, Jackson's claims were transparent. When he vetoed legislation, the reasons were given in written documents that were splashed across the front page of every major newspaper. And when he removed the federal deposits from the Bank, he explained the decision in a lengthy public report. As a result, everyone could examine these arguments and reach their own conclusion. By contrast, George W. Bush made most of his claims in secret, where only a handful of people could consider their merits. This undermined the quality and legitimacy of the legal analysis in question. Of course, some aspects of what the Bush Administration did had to be confidential, but clearly more disclosure could have been made. Second, Jackson never claimed that he possessed the constitutional authority to disregard a statute that regulated his office. The President's opponents, most notably Webster, did accuse him of harboring this ambition, but Jackson was always careful to disclaim this power. Thus, there was no counterpart to the Bush Administration's assertion that the Commander-in-Chief Clause - the textual hook for military necessity -- could be read to displace statutory law on issues like domestic surveillance or torture.Finally, Yoo points out quite correctly that the voters repeatedly endorsed Jackson's innovations despite the misgivings of his opponents. In campaigns where the President's foes ran hard against his "tyrannical" leadership, he was comfortably reelected in 1832 and saw his Democratic Party sweep the board in 1834 and 1836. It remains to be seen whether a similar mandate will be given to what President Bush has done, though the Republican defeat in 2006 and the party's relatively weak position entering the 2008 general election suggest that no such blessing is forthcoming.

Tuesday, August 12, 2008

I am very happy to announce that Dan Ernst, Georgetown Law School, is joining the Legal History Blog as an on-going co-blogger. Readers will remember Dan's recent stint as a great guest blogger. I'm sure you will enjoy his posts, and I am very much looking forward to working with him.

After a brief sketch of the history of philosophical pragmatism generally, and of legal pragmatism specifically (section 1), this paper develops a new, neo-classical legal pragmatism: a theory of law drawing in part on Holmes, but also on ideas from the classical pragmatist tradition in philosophy. Main themes are the "pluralistic universe" of law (section 2); the evolution of legal systems (section 3); the place of logic in the law (section 4); and the relation of law and morality (section 5).

An Oblique Perspective, Perhapsis the oblique title of an interesting new paper by John Henry Schlegel, University at Buffalo Law School, SUNY. Here's the abstract:

Nineteenth Century ethnic neighborhoods grew out from the city center in the same way as contemporary geographic areas do - by a species of suburban growth much like a conveyor belt, where the wealthiest residents move into the newest homes and the rest of the community tends to move up leaving the oldest housing for the newest immigrants. These immigrant communities were usually centered in ethnic language Catholic parishes, though in the case of North Germans or Scandinavians, in ethnic language Protestant churches. Immigration reform in the years following World War I stopped this conveyor belt and when significant population growth began again in the years following World War II, the ubiquity of the automobile allowed these ethnic communities to disperse beyond central city limits, breaking the bond between ethnic community and ethnic parish or church. This dispersion may have fostered the intense concern for the self that was derived from the insecurity brought on by the decline of the American economy in the 1970s, as well as the particular form of religiously based politics that appeared in these years. Methodological notes about the relationship between law, religion and economic life and about the asserted relationship between modernization and secularization close the piece.

Landscape art in the antebellum era (the period before the American Civil War, 1861-1865), often depicts the role of humans on the landscape. Humans appear as hunters, settlers, and travelers and human structures appear as well, from rude paths, cabins, mills, bridges, and canals to railroads and telegraph wires. Those images parallel cases, treatises, orations, essays, and fictional literature that discuss property's role in fostering economic and moral development. The images also parallel developments in property doctrine, particularly related to adverse possession, mistaken improvers, nuisance, and eminent domain.

Some of the conflicts in property rights that gripped antebellum thought also appear in paintings, including ambivalence about progress, concern over development of land, and fear of the excesses of commerce. The concerns about wealth, as well as the concerns about the lack of control through law, appear at various points. Other paintings celebrate intellectual, moral, technological, and economic progress. The paintings thus remind us of how antebellum Americans understood property, as they struggled with the changes in the role of property from protection of individual autonomy of the eighteenth century to the promotion of economic growth in the nineteenth century.